Covid-19, no doubt, has significantly impacted many sectors of the New Zealand economy because of the border closures and travel restrictions.
What does this mean for the New Zealand employer, and how will Immigration New Zealand (“INZ”) approach Essential Work Visa applications, in particular, the labour market test.
Visa Processing of applications under Alert level 2
Under Alert Level 4, the processing of visa applications has been limited and focused on implementing the Epidemic Management Notice. That is focusing on requests from individuals who have a critical purpose for coming to New Zealand, and some temporary visa categories for applicants who are in New Zealand.
Under Alert 2, INZ is now in a position to begin processing a wider range of visa applications as more staff return to the INZ offices onshore. As of 14 May 2020, INZ has resumed the processing of residence class visa applications, and temporary class visa applications, including Essential Skills Work Visa for applicants currently in New Zealand. However, priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand. The processing of visa applications is expected to change as the border closures and travel restrictions change.
Availability of New Zealanders / Labour Market Test
Many employers are already aware that in order to employ a migrant worker, they must first take all reasonable steps to hire a New Zealander for the role. INZ must be satisfied that there are no New Zealanders available for the position offered. The employer is required to supply the following information:
- The steps they followed to recruit New Zealand workers;
- Reasons why the New Zealanders who applied for the role are not suitable; and
- Evidence of advertising the position via Trade Me, Seek etc., such as reports of views and submissions to confirm the number and types of applicants who applied for the job.
Covid-19 has affected New Zealand’s job markets dramatically, both by reducing the volume of business various industries can do, and by pushing many local workers out of their jobs. Therefore, INZ is expected to take this into account when assessing work visa applications under the Essential Skills Category. However, under the Essential Skills instructions, WK1.1 Objective, INZ must also consider a range of factors, including the need to help New Zealand businesses provide their services while protecting the employment opportunities for New Zealanders.
Advertising the role
Employers can advertise and recruit staff under any Covid-19 Alert Level. Of course, higher alert levels resulted in different methods of recruitment such as remote interviews, restrictions on movement between regions, on-site training etc. The restrictions obviously applied to both New Zealanders and overseas applicants. Employers would have faced delays and many challenges in the recruitment process to facilitate contactless interviews under the Alert level applicable at the time.
INZ will ask employers to provide evidence that, at the time the applicant’s work visa application is assessed, the availability of New Zealanders to undertake the job remains unchanged. They will probably be required to confirm that the offer of employment is still valid, and employment is sustainable – that is, can the company afford to pay wages.
Employers will not need to re-advertise the role. However, they may need to provide evidence of ongoing recruitment.
Skills Match Report
Employers wanting to employ overseas workers for ANZSCO skill level 4 and 5 roles (lower- skilled occupations) are required to provide a Skills Match Report and advice from Work and Income NZ (WINZ). This is necessary before they offer the role to the applicant. The employer needs to satisfy INZ that no New Zealanders are available to be trained to do the work.
In the past, the labour market was unlikely to change from the time the employer provides evidence of genuine attempts to recruit New Zealanders and the time INZ assess the application.
However, due to the Covid-19 outbreak, which resulted in travel restrictions and impacted business operations in NZ, unemployment rates have increased significantly in the space of a few weeks. In the months of April and May 2020, 38,425 people received jobseeker support. You can view this data on the Ministry of Social Development website for Income Support and Wage Subsidy Weekly Update. The 1 May 2020 weekly update represents 6.1 per cent of the working-age population receiving jobseeker benefit.
This means INZ will assess the Essential Skills Work Visa applications by balancing the objective of the Essential Skills Work Visa category with other factors:
- helping New Zealand firms maintain capacity and supporting the provision of services meeting important social needs; while
- not displacing New Zealanders from employment opportunities or hindering improvements to wages or working conditions.
Balancing exercise at the time of assessment
Immigration officers can request further information from the employer when assessing the Essential Skills Work Visa application. The reason is to show that despite earlier attempts to recruit New Zealanders, there are still no New Zealanders available for the position offered at the time of assessment.
Given the high unemployment rate, this will be a challenging exercise for the New Zealand employer. It will also be a challenge to demonstrate this with evidence. It would depend on the role offered, regions of employment and the circumstances of the employer.
Here are a few tips for the employer on the type of evidence an Immigration officer may request:
- Ongoing recruitment of New Zealanders for a similar role may show evidence that available New Zealanders would have been hired by that employer.
- Another employer in the same industry may be able to provide a letter confirming their own difficulties in finding suitable staff.
- In regions out of Auckland, employers can demonstrate that there is still a shortage of suitable New Zealanders for the role. Employers can check the regional skills shortage list via the INZ website available on this link.
INZ is not expecting employers to re-advertise the position. Still, employers can choose to do so if the immigration officer is not satisfied that there are no New Zealanders available.
Genuine and sustainable employment
We have seen in the past, INZ raising various issues that the employment is not genuine and sustainable as required under the Essential Skills instructions. If the employer received funding from the Covid-19 Wage Subsidy Scheme, this should not on its own indicate that employment offered is not genuine or not sustainable. The COVID -19 Wage Subsidy provides support to employers who are unable to operate their business due to restrictions required to manage public health risks; and not due to concerns about the employer’s sustainability.
The reality is that INZ will be treating genuine attempts to recruit New Zealanders more critically than before. Employers will face questions and requests from a case officer confirming the offer of employment they made to the applicant and the genuine attempts to recruit New Zealanders.
If you are applying for a job-based visa, or you are the New Zealand employer, and you feel like are you placed between a rock and a hard place and need professional help to address such concerns or requests from INZ, please contact us at Laurent Law.